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2022.07.07 Motion to Vacate Dismissal 486
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.07.07
Excerpt: ...of service complying with the 8/30/2021 Minute Order. He failed to do so. 2. Demurrer by USA Hotel Group LLC to FAC by Rafael Arroyo in 30-2020- 01173676 (ROA #306, 308, 311, 313, 314) The demurrer was served only on the plaintiff's counsel in violation of Judge Hunt's 8/30/2021 Minute Order. On 5/26/2022, moving party was ordered to file proof of service showing compliance with the 8/30/2021 Minute Order, and plaintiff was ordered to file the FA...
2022.07.07 Motion to Compel Further Deposition 688
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.07.07
Excerpt: ...bjections pursuant to Evid. Code §§ 970, 971, and 980, and objections against self-incriminating pursuant to 5th Amendment rights. The court finds none of these objections are applicable to the questions at this present time. 1) Marital Privilege Objections (Evid. Code §§ 970, 971, 980) As to the marital privilege objections, none of the questions request any information about Lamberto's wife, co-defendant Meredith Anne Castillo (“Meredith�...
2022.07.07 Motion for Summary Judgment, Adjudication 303
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.07.07
Excerpt: ... is in default for nonpayment of rent; (4) the tenant has been properly served with a written three-day notice; and (5) the default continues after the three-day notice period has elapsed.” (Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10, 16, citation omitted.) A valid three-day pay rent or quit notice is a prerequisite to an unlawful detainer action. (Code Civ. Proc., § 1161(2); Cal-American Income Property Fund IV v. Ho (1984) 161 Cal.App.3...
2022.06.30 Special Motion to Strike 601
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.06.30
Excerpt: ...e, that date was 6/17/2022. The opposition papers were woefully late, filed and served on Cape Frio only 2 days before the court hearing. Nevertheless, although the court has broad discretion under CRC rule 3.1300(d) to refuse to consider papers served beyond the deadline, (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765) the court has considered plaintiff's opposition here. Cape Frio's Request for Judicial Notice Cape Frio's unopposed r...
2022.06.30 Motion for Summary Judgment, Adjudication 434
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.06.30
Excerpt: ...vidence showing either that: (1) one or more elements of plaintiff's prima facie case is lacking; or (2) the adverse employment action was based upon legitimate, nondiscriminatory factors. (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003, citing Guz v. Bechtel National, Inc., (2000) 24 Cal.4th 317, 357.) If the employer's moving papers satisfy the initial burden, the burden shifts to the employee to “demonstrate a triable issue ...
2022.06.30 Motion for Judgment on the Pleadings 540
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.06.30
Excerpt: ...Amended Complaint (the “FAC”), based on the recent decision in Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209 (“Rodriguez”). Kia argues that under Rodriguez, Plaintiff's claims in COAs 1-5 are barred, because the subject vehicle was purchased as a used car from a retail seller unaffiliated with the manufacturer, and thus does not qualify as a “new motor vehicle” under the relevant portions of the Song- Beverly Consumer Warranty Ac...
2022.06.30 Demurrer 579
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.06.30
Excerpt: ..., Plaintiff argues that Moving Party is liable pursuant to Education Code §44808, which imposes liability on school districts where they have “undertaken to provide transportation for such pupil to and from the school premises, has undertaken a school- sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances.” (Cal...
2022.06.23 Special Motion to Strike FAC 358
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.06.23
Excerpt: ...tivity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)  Prong 1: Protected activity   A claim may be struck pursuant to section 425.16 only “if the speech or petitioning activity itself is the wrong complained of, and not just evidence...
2022.06.23 Motion to Tax Costs 181
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.06.23
Excerpt: ...hat they were not reasonable or necessary. Foothill-De Anza Comm. College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 773-74. The party challenging costs does not meet this burden by arguing that the costs were not necessary or reasonable, but must present evidence and prove that the costs are not recoverable. Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1...
2022.06.23 Motion to Compel Further Responses 457
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.06.23
Excerpt: ...torney Roofian and his client Tylor Johnson between 2017 and the present relating to plaintiff's investment in a cannabis company through Yellowstone Holdings 2020 and Johnson's direction to Roofian regarding transfer of funds received on behalf of plaintiff to third parties. Roofian has asserted the attorney-client privilege in response to all RFPS and produced a privilege log. Attorney-Client Privilege A confidential communication between clien...
2022.06.23 Motion to Compel Further Responses 359
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.06.23
Excerpt: ...nt to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of ...
2022.06.23 Motion for Summary Judgment, Adjudication, to Compel Deposition 932
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.06.23
Excerpt: ...filed on 2/17/22 by Plaintiff Luis Alvarez (“Plaintiff”). Motion 1 – the MSJ/MSAI The MSJ/MSAI is GRANTED IN PART. As a preliminary matter, the Regents' papers contains multiple defects. The Motion's MPAs and Reply brief both substantially exceed the page limit under C.R.C. 3.1113(d), and also fail to comply with C.R.C 2.108(1) and (4). While the violation on the moving papers could be attributed to oversight, the same is not true for the r...
2022.06.16 Demurrer to TAC 071
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.06.16
Excerpt: ...s DENIED. AGA is ordered to file and serve an answer to the TAC within 10 days. Demurrer A claim for intentional infliction of emotional distress must plead the following elements: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of ...
2022.06.09 OSC Re Preliminary Injunction 538
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.06.09
Excerpt: ...5/19/22 is also ordered to be terminated. The court notes Plaintiff has put forth almost no, or at most excessively minimal, legal basis, arguments, and evidence in support of her request for a PI. Plaintiff failed to cite to any code section that permits the court to grant a PI, and Plaintiff only cited to two cases, neither of which involves a foreclosure action. There are multiple possibilities for requesting a PI under Civ. Proc. Code § 525,...
2022.06.09 Motion for Sanctions 570
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.06.09
Excerpt: ...that ruling based on CCP sections 128(a)(8) and 663a. That filing was 70 days after notice had been served on the MSJ and it was originally set for hearing on 11/4/21. On 9/24/21 MP served the instant motion for sanctions, giving plaintiff more than 21 days “safe harbor” to withdraw the Motion to Vacate prior to the then hearing date. Subsequently, the Court, on its own motion continued that hearing to 1/27/22. On that date the Motion to Vaca...
2022.06.02 Motion for Summary Judgment, Adjudication, for Protective Order, for Sanctions, to Quash Deposition Subpoena, to Compel 613
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.06.02
Excerpt: ...bpoenas filed on 7/10/20 by Plaintiffs (“Motion 5”); and 5) two Motions to Compel filed on 9/25/20 by Plaintiffs, as to five sets of discovery (“Motion 6 and Motion 7”). Motion 1-Motion for Summary Judgment/SA Motion 1 is GRANTED. In the legal malpractice context, the elements of causation and damage are particularly closely linked. (Hecht, Solberg, Robinson, Goldberg & Bagley LLP v. Superior Court (2006) 137 Cal.App.4th 579, 591.) The pl...
2022.05.26 Motion to Remove or Reduce Mechanic's Lien, for Attorney Fees 892
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.05.26
Excerpt: ...efendant's property on 10-22-20 in the amount of about $1,313,182; and (2) awarding defendant its attorneys' fees of $10,625.00. Lambert v. Superior Court (1991) 228 Cal.App.3d 383, 388-389 and Civil Code §§ 8422, 8430, 8488. Under Lambert v. Superior Court, supra, 228 Cal.App.3d 383, a property owner may bring a motion to remove an unjustified mechanic's lien without waiting for trial on the action to foreclose the lien. The inquiry made on su...
2022.05.26 Motion to Compel Deposition 835
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.05.26
Excerpt: ...ional non-privileged responsive documents located on Mr. Pittman's computers and agreed that if Mr. Pittman produced additional responsive documents, he would sit for another deposition session limited to the topics affected by the supplemental production. (Supp'l Ledingham Decl. at ¶ 13 and Exhibit J thereto.) Nonetheless, Bryan Industrial maintains its request for a Court order compelling Mr. Pittman's deposition and document production based ...
2022.05.19 Demurrer, Motion to Strike 467
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.05.19
Excerpt: ...he existence of the contract, the plaintiff's performance or excuse for failure to perform, defendants' breach and damage to plaintiff resulting therefrom. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1031) The complaint must allege the ultimate facts necessary to state an actionable cause of action, and it is insufficient to simply plead the evidence by which he hopes to prove such ultimate facts. (Careau & Co....
2022.05.05 Demurrer 688
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.05.05
Excerpt: ...le, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (19...
2022.04.21 Motion to Quash 687
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.04.21
Excerpt: ...Court (2010) 186 Cal.App.4th 414, 426 [C.C.P. § 998 offer made while motion to quash pending]; ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 214 [anti-SLAPP motion made while motion to quash pending].) As Carlyle had a Motion to Quash pending when its other filings occurred, those filings did not constitute a general appearance here. On the merits, Plaintiff Plutos Sama Holdings, Inc. (“Plaintiff”) has failed to meet its burden on this...
2022.04.21 Motion for Summary Judgment, Adjudication 100
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.04.21
Excerpt: ...the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850) A plaintiff moving for summary judgment must prove each element of the cause of action. (Id. at p. 853) A plaintiff meets his burden of showing there is no defense to a cause of action by proving each element of...
2022.04.21 Demurrer, Motion to Strike 357
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.04.21
Excerpt: ...ory allegations are contradicted by the prior allegations that this reference was a mere scrivener's error on the part of the cross- defendants. Furthermore, there are no allegations to show that either agreement failed to embody “the real agreement” agreement between the parties. The timeliness issue will be quickly addressed. Both parties agree that the limitations period for a cause of action for reformation is 3 years. Moving cross-defend...
2022.04.21 Demurrer to FAC 869
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.04.21
Excerpt: ...t”), together once annually for four years between 1/2019 and 1/2022 in Denver, Colorado. (FAC ¶11) Outdoor Retailer + Snow Show is defined in the Agreement as the “Event”, “an annual winter industry trade show that takes place each winter in the Colorado Convention Center in Denver, Colorado”. The obligations of the parties under the contract are defined in sections 1 and 2 of the Agreement and relate to conducting an in person event ...
2022.04.21 Demurrer 072
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.04.21
Excerpt: ...tion, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “[T]he burden is on the Plaintiff to show the manner in which she may amend, and how the amendment will change the legal effect of the pleading.” (Goodman v. Kennedy...
2022.04.14 Motion for Summary Judgment 476
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.04.14
Excerpt: ...a business tenant at the Property, while Defendants are the owners and/or managers of the Property. Plaintiff was physically assaulted one afternoon by a transient individual who allegedly lived on the Property. The transient began by hitting Plaintiff and his co-workers' vehicle' with a metal bar, at which time Plaintiff confronted the individual initially, but then retreated back to his office to call the police. While on the phone with police,...
2022.04.14 Applications for Right to Attach Order and Writ of Attachment 349
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.04.14
Excerpt: ...monstrating the claim at issue is a commercial claim for money based upon an express contract for a fixed or readily ascertainable amount not less than $500, secured by personal property; the probable validity of its claim, that attachment is not sought for a purpose other than recovery on the claim upon which the attachment is based and that the amount to be secured by attachment is greater than zero. (CCP§§ 483.010, 484.090 (a).) Wells has es...
2022.03.24 Motions to Compel Further Responses 521
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.03.24
Excerpt: ...ch alleges in its entirety: Upon information and belief, AT&T's long lines network became obsolete and AT&T ceased operation of the network, and use of the Olinda Site as a microwave radio relay station or for any purpose, in the 1990s, more than two years prior to its Quitclaim Deed to ATL in 2000. By the terms of the Grant of Easements, the easements reverted to Plaintiff upon AT&T's cessation of use of the easements for their intended use, or ...
2022.03.24 Demurrer 510
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.03.24
Excerpt: ...cie case of discrimination must include circumstances suggesting that the employer acted with a discriminatory motive. (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1379.) But the FAC here has presented only conclusory assertions about discriminatory animus which do not suffice to support the claim. Nor is the “adverse employment action” upon which he bases his claim clearly articulated. Facts in support of...
2022.03.24 Demurrer 294
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.03.24
Excerpt: ...ting that Mirza was ever paid or offered consideration pursuant to the oral contract. (See Bennett v. Potter (1919) 180 Cal. 736 [Consideration is essential to the validity of a contract.].) In addition, Mirza is correct that the oral agreement as alleged appears illusory because it is not limited to any specified timeframe and, as a result, Niaki Productions, Inc. essentially assumed no obligation. An agreement is illusory and there is no valid ...
2022.03.03 Special Motion to Strike 687
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.03.03
Excerpt: ...free speech in connection with a public issue as defined in the statute (“Prong 1”). (C.C.P. § 425.16(b)(1); Simpson Strong-Tie Company, Inc. v. Gore (2010) 49 Cal.4th 12, 21; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) The moving party meets that burden by demonstrating that the act underlying the cause fits one of the categories in § 425.16(e). (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043)...
2022.03.03 Demurrer 486
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.03.03
Excerpt: ...el to Inn in March 2020 (Compl. ¶12) and chose to stay at Inn because of the desirable price and location (Compl. ¶13). Due to his physical disability, plaintiff is unable to or seriously challenged in his ability to stand, ambulate, reach objects, transfer from his chair to other equipment and maneuver around fixed objects (Compl. ¶14). He therefore requires an accessible guestroom and information about accessible features in hotel rooms so h...
2022.02.24 Motion for Summary Judgment 247
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.02.24
Excerpt: ...hat the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes o...
2022.02.24 Motion for Summary Adjudication 871
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.02.24
Excerpt: ...against Sevilla for breach of contract of the duty to defend and indemnify Antis in this litigation. “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850) A plaintiff or cross-complainant meets his burden of showing there is no defense to a cause of action if ...
2022.02.24 Demurrer, Motion to Strike 835
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.02.24
Excerpt: ...e of action on behalf of Ball Road Industrial Park (“Ball Road”) in the same lawsuit in which Plaintiff brings five other, direct claims in his personal capacity as partner of Ball Road. The Court did not previously rule on this issue. Bryan Industrial cites several cases in support of its demurrer. In Shenberg v. De Garmo (1943) 61 Cal.App.2d 326, the Court stated: “An action of a personal nature resulting in injury to the plaintiff indivi...
2022.02.17 Special Motion to Strike 005
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.02.17
Excerpt: ... Anti-SLAPP motions are governed by CCP § 425.16 which provides at subd. (b)(1) that “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the Court determines that the plaintiff has established that there is a probability ...
2022.02.17 Motion to Compel Further Responses 442
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.02.17
Excerpt: ...ection below. Civ. Proc. Code §§ 2030.220 and 2030.230 contain the requirements for responding to FROG. The court finds Defendants current response to FROG No. 12.1 as potentially deficient and grants the present motion pursuant to Civ. Proc. Code § 2030.300. Although the definition of “INCIDENT” is slightly vague as to relates to a lemon law matter and to multiple repairs and potential requests for repurchase, it is not so vague as to pro...
2022.02.10 Motion for Reconsideration 569
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.02.10
Excerpt: ...y of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are ...
2022.02.10 Motion to Strike Punitive Damages 016
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.02.10
Excerpt: ...d to an award of punitive and exemplary damages in an amount to be decided at the time of trial.” ¶38 is pleaded in connection with the second cause of action for fraud based on intentional misrepresentation. ¶46 is pleaded in connection with the third cause of action for negligent misrepresentation. Plaintiff also seeks to strike Item 4 from the prayer for relief which states: “4. Punitive, special and/or exemplary damages; and/or” When ...
2022.01.27 Motion to Strike, Demurrer 205
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.01.27
Excerpt: ...n, the time runs from the service of notice of the decision or order, unless the notice is waived. Here, as the proposed order submitted with the prior demurrer did not comport with the Court's subsequent ruling, a revised proposed order was lodged on 7/26/21 and signed on 8/10/21. As Plaintiffs filed the FAC on 8/12/21, it was not clearly untimely. The Motion is therefore denied. Defendant's Request for Judicial Notice is GRANTED under Ev. Code ...
2022.01.27 Demurrer, Motion to Strike 701
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.01.27
Excerpt: ...a claim for assault and battery is 2-years. Here, the Complaint indicates this action arises from an incident which occurred on October 27, 2016, nearly five years prior to the filing of this action. (¶7 of Complaint). Based on this allegation, Plaintiff's claims are barred, absent allegations which demonstrate delayed discovery, tolling or equitable estoppel. “When a plaintiff relies on a theory of fraudulent concealment, delayed accrual, equ...
2022.01.27 Demurrer 072
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.01.27
Excerpt: ...h 962, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “[T]he burden is on the Plaintiff to show the manner in which she may amend, and how the amendment will change the legal effect of the pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Leave to amend is properly denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law. (Lawrence v. Bank of America (1985) 1...
2022.01.20 Motion for Summary Judgment, Adjudication 168
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.01.20
Excerpt: ...r or agent who is not an attorney.” Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal. App. 4th 1094, 1101. Since Roxy is unable to represent itself and it did not file any opposition whatsoever, the MSJ is granted in its entirety as to Roxy. While Otero filed an opposition, he did not file the required separate statement of material facts. CA ST CIVIL RULES Rule 3.1350(e)(2). “Failure to comply with this requireme...
2022.01.20 Demurrer 793
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.01.20
Excerpt: ...n may be stated for the negligent infliction of serious emotional distress. (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 930). “A direct victim cause of action for negligent infliction of emotional distress will lie ‘where a duty arising from a preexisting relationship … is negligently breached.” (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 108). Plaintiffs have pled sufficient facts to constitute a caus...
2022.01.13 Demurrer, Motion to Strike, to be Relieved as Counsel 673
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.01.13
Excerpt: ... Realty's (“HSIR” individually; HOM together with Shapiro) Demurrer to Daniel C. Kwock's (“Kwock”) First Amended Cross-Complaint (“FACC”) is SUSTAINED in part and OVERRULED in part. Sustained with leave to amend as to COA Nos. 2, 10, and 14. Overruled as to COA Nos. 1, 3-9, 11-13, and 15. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. Blank v. Kirwan (...
2021.12.16 Motion for Award of Fees and Costs 223
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.12.16
Excerpt: ...) 39 Cal.App.4th 1379, 1383; Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320 [“The defendant may recover fees and costs only for the motion to strike, not the entire litigation.”].) And such fees cannot be claimed by an attorney representing himself or a law firm represented by the firm's attorneys. (Witte v. Kaufman (2006) 141 CA4th 1201, 1207- 1211; Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 494.) Fees her...
2021.12.16 Demurrer 192
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.12.16
Excerpt: ...3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. “Face of the complaint” includes matters shown in exhibits attached to the complaint and incorporated by reference. Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 (“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader's allegations as to the legal effect...
2021.11.18 Motion for RFAs to be Deemed Admitted 492
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.11.18
Excerpt: ... motion, substantially compliant responses, the court has no discretion but to deny the motion. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 776). Plaintiff's motion to deem the first set of Requests for Admission propounded to WSH admitted is DENIED as MOOT. On 10/28/2021, this court denied the identical motion involving identical issues brought by plaintiff Thomas Davidson (“Davidson”). The court detailed its reasoning for denyin...
2021.11.18 Demurrer 004
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.11.18
Excerpt: ...-complaint without leave of Court Moving cross-defendant initially contends that the first amended cross-complaint was improperly filed, suggesting that leave of Court was required. Moving cross-defendant is incorrect. The moving cross-defendant is also the plaintiff. A cross-complaint must be filed against any party who filed a complaint or cross-complaint against him or her before or at the time of the answer to the complaint or cross-complaint...
2021.10.28 Motion for Summary Adjudication 840
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.10.28
Excerpt: ...persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850, as modified (July 11, 2001). “A defendant . . . has met his or her burden of showing that a cause of actio...

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